CORPORATE SYSTEMS PUBLISHING PTY LTD & ANOR -v- LINGARD & ORS [2004] WASC 24

Link to Appeal :

[2009] WASCA 158

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 24
Case No:	CIV:1788/2003	Heard:	13 FEBRUARY 2004
Coram:	JENKINS J	Delivered:	24/02/04
No of pages:	17	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	CORPORATE SYSTEMS PUBLISHING PTY LTD (ACN 009 412 622) NICK CHRISTOU KEITH GRAEME LINGARD STANTON PARTNERS AUSTRALASIA PTY LTD (ACN 085 103 206) STANTON ACCOUNTANTS & ADVISORS PTY LTD (ACN 085 059 909) NEIL KEVIN JOYCE
Catchwords:	Legal practitioners Inherent power of court to control legal practitioners Conflict of interest Duty of loyalty Solicitor's interest in a matter Public policy
Legislation:	Corporations Act 2001, s 236, s 237(2)(c), s 237(2)(d) Partnership Act 1895 Trustees Act 1962, s 65(2), s 65(3), s 65(7), s 76(1)
Case References:	Afkos Industries Pty Ltd v Pullinger Stewart [2001] WASCA 372 Clay v Karlson (1997) 17 WAR 493 Fordham v Legal Practitioners Complaints Committee (1997) 18 WAR 467 Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357 Murcia & Associates v Grey & Ors [2001] WASCA 240 Newman v Phillips Fox (1999) 21 WAR 309 Aircent Pty Ltd v Apple Computer Australia Pty Ltd [2002] FCA 1270 Carindale Country Club Estate v Astill (1993) 42 FCR 307 Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192 Coyne v Bennett, unreported; SCt of WA; Library No 920664; 9 December 1992 Emanuele v Emanuel Investments (1996) 21 ACSR 83 Goozee v Graphic World Group Holdings Pty Ltd [2002] NSWSC 640 Grimwade v Meagher, Hegland, Morgan, Lidgett, Reid & Bellheath Pty Ltd [1995] 1 VR 446 Hassall v Speedy Gantry Hire Pty Ltd [2001] QSC 327 Jovanovic v Law Society of Tasmania [2003] TASSC 11 Software Engineers Australia (NSW) Pty Ltd v Bonket Pty Ltd [2002] FCA 1168 Swansson v R A Pratt Properties Pty Ltd [2002] NSWSC 583; 42 ACSR 313 Walton v Gardiner (1992) 177 CLR 378 Wan v McDonald (1992) 33 FCR 491

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CORPORATE SYSTEMS PUBLISHING PTY LTD & ANOR -v- LINGARD & ORS [2004] WASC 24 CORAM : JENKINS J HEARD : 13 FEBRUARY 2004 DELIVERED : 24 FEBRUARY 2004 FILE NO/S : CIV 1788 of 2003 BETWEEN : CORPORATE SYSTEMS PUBLISHING PTY LTD (ACN 009 412 622)

First Plaintiff

NICK CHRISTOU

Second Plaintiff

AND

KEITH GRAEME LINGARD

First Defendant

STANTON PARTNERS AUSTRALASIA PTY LTD (ACN 085 103 206)

Second Defendant

STANTON ACCOUNTANTS & ADVISORS PTY LTD (ACN 085 059 909)

Third Defendant

NEIL KEVIN JOYCE

Fourth Defendant

(Page 2)

Catchwords:

Legal practitioners - Inherent power of court to control legal practitioners - Conflict of interest - Duty of loyalty - Solicitor's interest in a matter - Public policy

Legislation:

Corporations Act 2001, s 236, s 237(2)(c), s 237(2)(d)

Partnership Act 1895
Trustees Act 1962, s 65(2), s 65(3), s 65(7), s 76(1)

Result:

Application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] WASC 24
Decision Date

CaseChat Overview and Summary

Corporate Systems Publishing Pty Ltd and Nick Christou sought an order to restrain Bennett & Co, a firm of solicitors, from representing Keith Graeme Lingard and Stanton Partners Australasia Pty Ltd, Stanton Accountants & Advisors Pty Ltd, and Neil Kevin Joyce in proceedings related to a dispute over unauthorised payments made to the family trusts of Lingard and Joyce. The plaintiffs argued that the solicitor had a conflict of interest in representing both the defendants and the plaintiffs and sought to restrain the solicitor from acting for the defendants. The defendants argued that there was no conflict of interest and that the plaintiffs' application was premature and an abuse of process. Jenkins J dismissed the application on the basis that the court could not restrain a solicitor from acting for clients in other proceedings unless it adversely affected the current proceedings. The court found that the solicitor's representation of the defendants in the proposed proceedings did not impact on the current proceedings and that the real issue was not the solicitor but who was authorised to instruct the solicitor. The orders sought by the plaintiffs would not resolve this conflict.

Orders